In “The Old Regime and the Revolution”… Alexis de Tocqueville observed that, in the decades leading up to the Revolution, France had been notably prosperous and progressive. We hear a lot about the hunger and the song of angry men, and yet the truth is that, objectively, the French at the start of the seventeen-eighties had less cause for anger than they’d had in years. Tocqueville thought it wasn’t a coincidence. “Evils which are patiently endured when they seem inevitable, become intolerable when once the idea of escape from them is suggested,” he wrote.
The Marikana massacre, in which the South African Police Service (SAPS) killed 34 striking mine workers, may well turn out to have been a watershed moment in South African politics. From where I sit, it looks suspiciously as if the ruling elite (ab)used its control of the SAPS (or its political access to those who control the SAPS) to teach miners taking part in a violent and unprotected strike a “lesson”, because these striking miners threatened its financial and class interests. As a result, 34 striking and protesting miners were killed by the SAPS and more than 78 people were injured.
The Farlam Commission of Inquiry into the massacre, and the events that led up to it, may not come to the same conclusion. Commissions of Inquiry – even Commissions that do a good job – are usually better at determining the small truths than at uncovering the larger political truths of a tragic event like this. It is also not yet clear to what extent the alleged SAPS cover-up of the event and the possible protection of political principals and mine company executives will succeed.
This does not mean that the work done by the Farlam Commission is not important. Like the Truth and Reconciliation Commission it might uncover at least part of the truth, creating a factual matrix within which, over time, we will come to understand the political significance of the events on 16 August 2012. For that reason it is essential that the Commission must be seen to be acting fairly: if its findings are not trusted by everyone, it will be difficult to rely on these findings as a springboard for more searching analysis of the political import of the Marikana massacre.
The Commission’s legitimacy was threatened by the withdrawal of the legal teams representing the families of the killed miners as well as of the injured and arrested miners because of a dispute about the funding of the lawyers of the injured and arrested miners (led by Adv. Dali Mpofu). It therefore came as a great relief when the North Gauteng High Court (in a legally daring judgment by Makgoka J) in the case of Magidiwana and Another v President of the Republic of South Africa and Others ordered Legal Aid SA to fund Adv. Mpofu and his team.
I am delighted that Legal Aid SA has now agreed to fund Adv. Mpofu’s team. However, Legal Aid SA may still appeal the judgment because of the potentially far-reaching consequences the judgment poses to the continued financial viability of Legal Aid SA and it will not at all be surprising if such an appeal succeeds.
The bulk of the judgment focuses on the right of surviving miners to be represented by legal representatives and does an admirable job of showing why section 34 of the Constitution – which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing – entitles miners to such legal representation.
What the judgment fails to do convincingly, in my opinion, is to show that this right must translate into a right to have those lawyers funded at state expensethrough Legal Aid SA.
As Legal Aid SA eventually conceded, its CEO does have the general discretion to fund the lawyers of interested parties who appear before a Commission of Inquiry. In fact, Legal Aid SA funded the lawyers of families of the deceased miners in accordance with this general discretion. The question is whether its decision to fund the lawyers representing the families of deceased miners (but not the injured and arrested miners) could be declared unconstitutional on the basis that it was irrational to fund the former but not the latter.
The court found that the injured and arrested miners did have a right to state funded legal representation in general, given their substantial and direct interest in the outcome of the commission; their vulnerability and financial position; the complexity of the proceedings and the capacity of the applicants to represent themselves; the procedures adopted by the commission; the need for an “equality of arms” between the parties; and the potential consequences of the findings and recommendations of the commission for the injured and arrested miners.
In a wonderful passage that could easily apply to the vast majority of litigants and accused persons of modest means who need legal representation in South Africa, the court stated:
The fact that they [the miners] are poor should never be a basis to summarily dismiss their potential substantial prejudice. It is unthinkable and deeply offensive to basic fairness and the rule of law in a democratic state that the poor and vulnerable be left to their own devices, in a manner that will deny them exercise of their constitutional right in terms of s. 34 of the Constitution.
Moreover, the court pointed out that the SAPS legal team is said to comprise five advocates (three senior counsel and two senior-junior counsel). In addition, the SAPS also use the services of a private firm of attorneys in Rustenburg, instead of State Attorney. Furthermore, the Minister of Police, whose interests should ordinarily coincide with those of SAPS, for some reason maintains a separate legal team on a so-called “watching brief” at the Commission (a fact that raises its own set of questions about the possible political involvement in the events of 16 August 2012).
According to the court, the State parties’ legal representation costs approximately R2 million to R3 million per month.
The judgment therefore concludes that considerations of fairness and the need for “equality of arms” between the parties require the state to fund the legal representatives of the miners. The interests of justice and the rule of law would be undermined by a failure to fund their lawyers.
It would be difficult to argue with the court that it would be fundamentally unfair for one party to be represented by lawyers to the cost of up to R3 million a month while another party with a direct interest in the outcome of the Commission have no legal representation at all. After all, those involved in the killing and injuring of the miners are represented by an army of lawyers, ever alert to protect the interest of their clients, who would obviously like to pin the blame for the massacre on the miners themselves in order to absolve the SAPS and its political principal from any blame. It seems extremely unfair that the one side is so well protected while one of the other parties is not.
However, apart from the profound political importance of the case, this situation is not fundamentally different from that faced daily by many litigants or potential litigants who wish to go to court to enforce their legal rights or to challenge the abuse of power or the flouting of the law by big banks, other large corporations, wealthy individuals or the state. Legal Aid SA very seldom provides funding for such litigants due to an acute shortage of Legal Aid funds. It is mandated by its rules and by the Constitution to fund lawyers for indigent criminal defendants “if substantial injustice would otherwise result”, but the Constitution does not explicitly impose a duty on the state (and hence Legal Aid SA) to fund civil matters (nor matters relating to Commissions of Inquiry).
Because of a lack of funds to pay good lawyers capable of taking on the “big boys” (and the difficulty of securing the services of such lawyers, given the financial interests many lawyers have in representing the “big boys” instead), ordinary people – both poor people and middle class people – often face insurmountable hurdles in securing justice in court.
There are no quick fix solutions to secure better access to justice for most South Africans. It would help if the state pumped additional billions of rands into the legal aid system – but that is not going to happen. Funds are needed for other “important” state matters – like upgrading the private residence of the president.
Establishing a system in which recent law graduates do one year of community service – similar to medical graduates – to assist indigent litigants may also help to secure better access to justice, but that would require a gargantuan administrative effort from the Department of Justice. The Department currently probably does not have the financial and human resources to pull this off successfully.
Simplifying legal rules and moving away from the absurdly rigid application of these rules by some courts, will also help. Many procedural rules unnecessary complicate litigation and increase costs – often to the advantage of those litigants with the deepest pockets and hence the best lawyers. It goes without saying that litigants without lawyers are often unfairly disadvantaged by these rules or are precluded from benefiting from access to the legal system at all because of their lack of knowledge of the rules.
But because of the formalistic legal culture – often inculcated and perpetuated by untransformed legal training provided at Law Schools – and because lawyers often benefit financially from the complicated and formalistic legal rules, there seems to be little appetite among elites in the legal profession to champion the streamlining and simplification of procedural rules.
It is judged against this background that the ultimate decision of the court in the Marikana case gets to look a bit shaky. This is so, not because it would have been fair to deny the injured and arrested miners legal representation at state expense, but because it is not clear that the decision of Legal Aid SA not to fund the lawyers can be said to have been irrational, given its many other commitments and the almost infinite demands on its limited funds.
Legal Aid SA provided three reasons for funding the legal team representing the families of the killed miners but not the legal team of the injured and arrested miners. First it claimed that the former group had a “substantial, proximate, and material interest in the outcome of the commission” to a degree that the latter did not. Second, it claimed that the latter group’s interests would be adequately protected by labour unions, NUM and AMCU. Third, it claimed that due to budgetary constraints it could not fund both parties.
The court (seemingly confusing or conflating the requirements for legality contained in section 1 of the Constitution and the test for a breach of section 9(1) of the Constitution) affirmed, correctly, that the exercise of public power by the executive and other functionaries should not be irrational. The court, more controversially, concluded that the refusal by Legal Aid SA to provide legal aid to the injured and arrested miners was not rationally related to the purpose of the Legal Aid Act, (as far as I can tell) because it found that this was not done to pursue a legitimate purpose.
The court did not really explain why this was the case. If the purpose of the decision was to manage Legal Aid SA’s funds properly, it is unclear why it would be irrational for Legal Aid SA to fund the one group but not the other. There is also clearly a difference in the position between the two groups: the loved ones of one group were killed, while the members of the other group are still alive.
Rationality review does not allow the court to set aside a decision of a public body because that body acted unwisely or because another decision would have resulted in a fairer outcome. It only allows the court to interfere if it can be shown that there was no rational reason for its decision: in other words, when the decision is arbitrary or capricious. In this case one can argue about the wisdom of the Legal Aid SA decision, but I am not sure one can say with confidence that it was irrational. To hold otherwise would have potentially catastrophic consequences for the financial viability of Legal Aid SA.
Despite the shaky legal argumentation, the judgment must be welcomed. Hopefully the clear injustice illustrated by the case may well spark a broader debate about the lack of access to justice and about what steps can be taken by the government and by the legal profession to provide ordinary people with a better chance to access the skills of competent lawyers.BACK TO TOP